temporay Absence – marriage to Tunisian man

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  • #38681
    marie1
    Participant

    Customer IS lone parent was absent from UK for the following periods known so far –
    29.04.10 to 06.05.10, 12.08.10 to 26.10.10 13.12.10 to 07.03.11.

    All periods are <13weeks.

    Customer married May 2010 in Tunisia, however husband has not been able to gain access to country I beleive due to issues with visa, apparently he has tried for holiday visa and is still be processed!

    Customer is on IS and has returned to Tunisa for rather long periods to be with husband but ensured that she is back before 13 wks. She is now pregnant with baby due to arrive in September.

    IS DM has cancelled IS claim for above periods creating OVPS, as she fails to meet the LP conditions whilst out of country with partner.

    I would like to do the same but I am struggling as I can only find temporary absent regulations and reasons can be for anything so long as conditions are met etc etc.

    I know that whilst her husband remains in Tunisia, that he would not be considered in our claim, however it does not sit right with me that someone with one child, and another on the way who is married to someone in a different country can continue to receive HB/CTB.

    Please help me!!

    #109219
    nickkeogh
    Participant

    If you decide that the home that she normally occupies is in Tunisia then Reg 7(2) allows you to treat her as not liable. I had a case similar to that a couple of years ago where she kept coming back every 12 weeks from her partner’s villa in the Canaries while he stayed over there (I think he stayed there more to evade the British constabulary rather than any visa problems though).

    To be honest though if what she states is true which seems likely as she wouldn’t keep travelling back and forth to Tunisia if she really didn’t have to then all she is doing is using the temp absence regs until he can presumably come to the UK legally. Seems pretty legitimate from what you’ve said.

    #109220
    nickkeogh
    Participant

    [quote=nickkeogh]To be honest though if what she states is true which seems likely as she wouldn’t keep travelling back and forth to Tunisia if she really didn’t have to [/quote]

    By this I mean the travelling involved with a child and while pregnant, not because it’s Tunisia – I’m sure it’s very nice.

    #109273
    marie1
    Participant

    Thanks for that, I am sure Tunisia is nice too!!

    I think like you she is using rules and there is nothing that can be done. I did make a note of 7(2) as an avenue to explore.

    Did your customer accept your application of that reg just out of interest or did it go further?

    #109277
    Kevin D
    Participant

    [quote=marie1]I think like you she is using rules and there is nothing that can be done. I did make a note of 7(2) as an avenue to explore. [/quote]

    In my view, Nick touched on the crux issue earlier. The first question is about whether the clmt satisfied s.130 SSCBA 1992 which only allows HB to be payable where the clmt occupies a dwelling [b]…as his home…[/b] AND in the UK. HBR 7(1) then comes into play and requires that the dwelling must be “normally occupied as his home” and all para 2 does is say that regard shall be had to any other dwelling occupied. Notably, para (2) does not make any statement to the effect that any other dwelling must be occupied “as the home”.

    If the LA is satisfied the nature of the absences is such that the clmt is not, as a fact, occupying the UK property [b]as her home[/b], HB is not payable. The LA doesn’t need to show the basis on which the Tunisian property is being occupied; only that regard has been given to the fact that the clmt does occupy it with it being (potentially) argued that such occupation is so long term and regular that she has ceased to occupy the UK property [b]as her home[/b].

    #109284
    nickkeogh
    Participant

    [quote=marie1]Did your customer accept your application of that reg just out of interest or did it go further?[/quote]

    It was a Housing Association property so I told them that she had only spent about a month in the previous year at the property and they said they would turf her out. Didn’t hear anything else from her.

    Although I do sleep with one eye open now taking into account my suspicions about her partner’s “business” activities.

    #109288
    Kay_Tade
    Participant

    [quote=Kevin D]If the LA is satisfied the nature of the absences is such that the clmt is not, as a fact, occupying the UK property [b]as her home[/b], HB is not payable. The LA doesn’t need to show the basis on which the Tunisian property is being occupied; only that regard has been given to the fact that the clmt does occupy it with it being (potentially) argued that such occupation is so long term and regular that she has ceased to occupy the UK property [b]as her home[/b].[/quote]

    I think this would be a difficult call for the LA to make, without kowing other details, I would not be very confident going down HBR 7(2) route.

    #109912
    marie1
    Participant

    Thanks for all your help, I am going to go down the route of excess income as she was able to fund, followed by not satisfying reg 7(1) to try and cover all avenues.

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